Judge ends hearing without ruling on Rep. Mia Love’s quest to halt vote count in Salt Lake County, says he understands need for speed

Robert P. Harrington, who represents Republican U.S. Rep. Mia Love's lawsuit, speaks in Third District Court Thursday Nov. 15, 2018, in West Jordan, Utah. A Utah judge has reserved a decision on a lawsuit in a tight House race filed by a Republican incumbent who is seeking to halt vote counting in a Democratic-leaning county that's key to the outcome. Judge James Gardner heard arguments Thursday in the lawsuit filed by Love, but ended the hearing without making a ruling. (AP Photo/Rick Bowmer, Pool)

West Jordan • An attorney for U.S. Rep. Mia Love contends there are problems with the Salt Lake County clerk’s method of validating mail-in ballots with questionable signatures.

And it doesn’t make sense that supporters of the Republican congresswoman — who’s currently trailing challenger Ben McAdams — can watch election officials at work but can’t second-guess them, the attorney declared to a judge Thursday.

County Clerk Sherrie Swensen’s attorney rebutted these arguments, saying the clerk runs an office that goes above and beyond to handle elections with integrity. But even if the judge did identify a few technical defects with the clerk’s practices, the attorney said, it’s virtually impossible to correct them at this point. The vote count in the neck-and-neck 4th Congressional District race is almost complete.

"You can't put toothpaste back in the tube, and I think this tube's pretty much empty," Bridget Romano of the Salt Lake District Attorney's Office said during the roughly two-hour hearing.

Judge James D. Gardner ended the hearing without ruling in the case, although he acknowledged the need for a speedy resolution to questions raised by attorneys on both sides. Meanwhile, Swensen’s office is continuing to count, and only 3,146 mail-in ballots remain in their envelopes.

The razor-thin margins in the contest have raised the stakes in the ongoing ballot-counting process, with McAdams now leading the incumbent by a mere 1,002 votes. On Wednesday, Love filed a lawsuit against Swensen, arguing her campaign should have a legal avenue to contest the county’s verification of signatures on ballot envelopes.

The oral arguments unfolded the day after Love filed her petition in 3rd District Court.

On Thursday, Love’s attorney, Robert P. Harrington, alleged there are numerous deficiencies in county forms used to confirm voter identities when a mail-in ballot signature doesn’t match the one on file with the clerk’s office. Harrington conceded that it’s late in the game to deal with this issue but argued the fix is still worth making.

"The underlying concern here, your honor, is that we get it right," Harrington said.

During the hearing, Gardner pressed Harrington to explain why Love’s campaign had targeted Swensen’s office for legal action and didn’t file similar petitions against clerks in the district’s other three counties, which are heavily Republican.

Harrington offered a few explanations — the situation is fast-developing and the campaign wanted to focus on the county that held the most votes.

"The reality is Salt Lake County comprises 85 percent of the congressional district," Harrington said.

The attorney for the McAdams campaign brought a different interpretation to Love’s decision. McAdams is in his second term as mayor of Salt Lake County, which has been his sole area of support in the four-county district.

"The clear thrust ... is that they want fewer votes in Salt Lake County to be counted," McAdams' attorney, D. Loren Washburn, said.

The attorneys also sparred over whether changing the rules at this point would be unfair to the small number of Salt Lake County voters whose ballots remain uncounted.

The problem of signature mismatch came up with 3,100 ballots, Romano said. In those cases, Swensen’s office sent out affidavit forms with attached letters, asking voters to verify their identities. It’s these forms that Harrington claims are defective.

More than 850 voters have already responded with the completed affidavits, and their ballots have been tabulated. Tossing out the affidavits would mean treating the remaining Salt Lake County voters differently from voters in Utah, Sanpete and Juab counties and from others whose ballots have already been counted.

"What we will have is a fundamental disenfranchisement of voters here in Salt Lake County," Washburn said.

After the hearing, Swensen said the affidavit forms haven’t changed since Love won election in 2016. Washburn said the affidavits in Salt Lake County are similar to the ones used in Utah County, although Harrington argues there are important differences.

Romano said there's also a problem with allowing Love's campaign workers to challenge ballot decisions made by Swensen's office. A campaign shouldn't have the ability to question a judgment call about whether a voter's signature matches what's on file, she said.

"Allowing campaigns to come in and to double-check ... on a subjective, I-don't-like-that-signature basis is really not something the Legislature would have or should have intended," Romano said.

But Harrington asserted that the right to supervise vote canvassing means little without the ability to challenge election workers' decisions.

Utah Gov. Gary Herbert on Wednesday expressed confidence in the state’s election process.

“I think the counts, when they’re all said and done, will be accurate,” he said.

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